these are really serious questions, we have locked up in every library in america, books that are not being sold that a lot of people would like to have access to if it was free and that is what did it is asian provides. to some degree people have to come to grips with it. there's a secondary issue in terms of the visual arts where artists, families for extended periods of time have copyright in effect, powers over great works of art and how long that should last is a powerful question. i will tell you as someone who came from a legislative background that fairly narrow commercial interests dictated a process of a particular period
of time. i doubt if the same decisions on extending copyright's through the ages would pass in today's environment. whether it is pared back as a matter for legislators and the one making process to look at, but clearly the copyright itself should be maintained. whether it should be maintained exactly in this framework is an open question. >> access -- >> where do you stand on this? spending money on the book. [talking over each other] >> a lot of books -- [talking over each other] >> there are materials that are locked up, the orphan works or things that libraries all over the world find, and that is why we are very hopeful that the
digital public library of america will help with the digitization of materials and also the projects that are going on so that you can unleash these things. we would love to think about it, and millions and millions, also think about the digitization that is going to take. >> that -- [talking over each other] >> they have a lousy deal on the publishing side. but still in process. >> they will be here on tuesday probably discussing these things. still fighting google, there is an appeal. the next panel -- [talking over each other] >> from the library side, that is the access and these things are being challenged. you still think about that
person, that 7-year-olds that wants the window to the world. >> i want to thank the distinguished panel for their contributions. [applause] >> thank you. >> now from the international summits of the book a panel titled copyright and the book, a conversation about authors, publishers and the public interest. it is about 50 minutes. >> good morning, everybody. line name is maria pallante and i am united states registrar of copyrights and director of the u.s. copyright office and i would like to say at the outset that for me this is a very wonderful privilege because as you may or may not know because of the long history of copyright law in the library of congress
this jefferson building is quite literally the house that copyright bills. let me start by introducing briefly the distinguished . let me start by introducing briefly the distinguished panel that we have. to my left is tom allen, former congressman from maine and chief executive officer of the association of american publishers. to his left his james shapiro, who is a professor of english and a shakespearean scholar and an author and vice president of the author's built, a professor at columbia university. thank you for coming down from new york. did you also come down from new york? from washington. you are everywhere. then we have peter jaszi, professor of copyright law at the washington college of law, american university, also an author. i will say also peter would not
want me to, recently given the great honor by his colleagues at the washington college of law to have a lecture named after him. congratulations and thank you for joining us. [applause] so our topic is copyright and the book. very small topic. copyright and the book, authors, publishers and the public interest. i want to reflect on the title for a moment. copyright and the book is at its core a discussion about the public interest. with arthur's and publishers as part of the public interest. i would underscore that because in the more recent conversations, in political circles, it sometimes teed up as a conversation where publishers and authors are somehow and difficult to or at least in competition with the goals of the public and that is not the
foundational history of copyright law in united states. we will talk about incentivizing authors, evaluating publishers, serving readers, protecting freedom of expression. we are also going to talk about how changes in the book industry including new formats, new methods of dissemination and consumer expectations are revealing the need for change. many people talk about the need for copyright reform and people mean different things when they talk about it but i will say from my perspective on behalf of the u.s. copyright office it is clear to us that many provisions in the copyright act require review and updating and the great challenge is how we reflect the digital age in which we live with the foundational
principles of copyright system as laid out in the constitution. with that, i would like to start with the very thoughtful professor on the end and could you say a few words about how the evolution of the book may be a cause for both progress and tension in the copyright law including for such long term tenets as the first doctrine first sale doctrine? >> i will do my best. thank you for the very generous introduction and for the invitation itself. it is a tremendous and very special pleasure to be here today talking to this audience in this space about this subject. the other thing i like about the framing of this panel is that it leaves me a problem often have when i talk about this topic of copyright and the public interest. that is what to call the mass of
individuals whose individual and collective well-being is implicated in the constitutional language that frames our copyright system and everything about copyright policy and its ultimate public objectives as maria described them. it is a problem to call the users because it suggests a role that i think is too passive, perhaps more true of consumers, citizens, is a little vague and perhaps over inclusive but today i don't have to worry about that because today we are talking about a public of readers and those are old readers and young readers and sophisticated readers and casual readers,
incisive readers, wine readers, all readers together. to begin, what do all these readers like about printed books? as i was trying to think of themes here, i went to elizabeth eisenstein's book divine art, internal machine, the response to print in the west, a sense of demanding, now out in paperback. she suggests two answers to the question what do readers like about the book, drawing of course from the history of the early reception of print. one answer is readers from the very beginning, from the fifteenth century forward have responded very positively to the fixity of the book, the apparent stability that printed pages
bound between stiff material gives to texts. she writes printing came to be known as the divine art partly because it was regarded as the art which preserved all other arts. but somewhat paradoxically as eisenstein points out early readers like readers today, also valued something different about the book, what might be referred to as the philosophy of print, the ability to multiplied copies meant the texts meaningless could move with new speed from hand-to-hand and mind to mind, but the book was literally and figuratively unchanged by this innovation. if i had slides which i don't i would show the slide of the old
hand copied volume change to the desk of the monastery to emphasize my point. eisenstein cites the early cleric and editor for writing in 1468 for his association of fringe with the generous act of sharing what was, we have the fixity of print which is appealing to readers and the velocity of print which has associated equal and sometimes contradictory appeal so it is fair to ask what does copyright have to do with all this. later we will have a chance, decisions taken in the future of
copyright policy to enable and potentially disable, the flowering of the book. i want to talk about one of the default settings of american copyright law which dates from a time long before we had a name for it. that is the rule that after an authorized first sale as we would say today of a particular copy of a book the copyright owner generally has no residual authority to restrain subsequent alienation whether by further sales or by gift or lending or any other way we can imagine. this venerable, even ancient rule was referred by the united states in 1988 and reaffirmed by congress, and in 1976, but however old, first sale is no
mere accident of history, broadly shared social values of freedom and autonomy and with as maria mentioned the instrumental goals of copyright to encourage the creation and broad dissemination, primary dissemination and secondary dissemination of knowledge. over time by keeping copyright within bounds including bounds imposed by the first sale doctrine we have been successful in sustaining, even perhaps accelerating philosophy of print and there have been all sorts of important effects from fomenting political change to reenforcing literacy to fostering a truly popular culture, the sale has given us great collections of books and manuscripts like the one we are present in today and
giving rise to essentials cultural institutions that serve the reading public directly, by circulating libraries and overtime academic and public libraries and i want to argue more controversially, by helping to make the reputation of writers whose popularity grew in those books pass reader to reader, the emergence of the professional author as we know that institution today. that sale is under siege. we hear complaints about use the book sales, and we wait to hear what the supreme court is going to say about the application of foreign made books when -- the plaintiffs in that case prevail, the doctrine will be significantly restricted but
whatever the result we can expect the new round of legislative activity, there will be a loser and someone is going to move for congressional adjustment and i suspect the proffered amendments to the copyright act will pose that the united states follow the example of european copyright laws that do not share our overarching commitment to promoting the circulation of useful knowledge by further restricting or further conditioning the doctrine. i hope that many ethanol of the participants in the system by which books are produced and consumed in the united states we will be able to join together to resist such erosion to a doctrine that has generated so many benefits and has so many more to offer. and leslie forget steven colbert
is watching. i would like to conclude that readers and those who care about your interest need to do more than defend the first sale -- the expansion of the books do digital form, the same virtues that we associate with printed books while in join the special bandage, their durability and persistence. after more than at decade's experience it may be time to revisit the conclusion of the copyright office and the dnc a section that case has not been made for a digital first sale doctrine giving the buyer of a book in digital form the right to pass along to another individual while simultaneously deleting it from the memory of the device from which it was originally purchased.
business models built on a vision of tethered e-books effectively disposable objects that are change not to a monastery desk but a particular transaction may make short-term sense but ultimately failed to promote the interests of readers in access to information which enjoy constitutional primacy in the united states copyright system. >> thank you, peter. [applause] >> let's bring to the discussion about it, tom, i would like to turn to you. the first u.s. copyright act protected book was for the primary point some ways trying to on the states that already put in place and you may notice the first federal registration was for a book in 1790, registration near and dear to my
heart. today your members, publishing house large and small operate businesses, sometimes look like trampolines financially and talk about what it is like to be a publishers these days and how do publishers occurred to copyright. is it more than making money? >> thank you. thank you. i will say at the beginning, i have given a lot of speeches and listen to a lot of speeches of varying quality for a long time. rarely have are listened to a speech and thought he immediately i wish i had written that. but there is one i want to quote to you. since the very beginning of our nation publishers have been catalysts for democracy, guardians of free speech, stewards of scholarship and education, disseminate ears of scientific discovery, and champions of literature.
however one defines knowledge economy today it could not have emerged, is not worth sustaining without the production and distribution of books, journals and other professional content. it goes without saying that wherever there is publishing there's copyright. senator keating called copyright the jugular of the book publishing industry. when maria said that earlier this year, i thought i have got to use that, a tribute that to her. and i certainly would not do otherwise. but it seems to me to sum up very much what i have heard since i walked into this position three years ago. there are a lot of publishers who care a lot more about making books than they do about making money. but given the structure of the industry there has to be return.
one of the big six did say to me i gamble with other people's money. that is particularly true of the trade sector, the consumer sector where every book is different and you don't know what is going to work and what is not but it also applies to some extent to the educational sector as well. the publishing industry is not one industry really. everybody in the industry cares about copyright because it is the jugular. there is enormous difference between the trade sector, fiction and nonfiction, the we buy in bookstores, and between what goes on in the k-12 market where sales are made in 14,000 school districts and that is different from the higher ed market where sales are made to individual students primarily on the recommendations of faculty and that is different from the scientific and technical and medical fields where it is more
sales, mostly digital, mostly to people who are already in those, working in those areas. we have a whole range of different issues and i want to say something about a few of them. i do want to say i have my own book coming out shortly. i learned something important. publishers really matter. they do two things. they have listed the quality of the final product and dramatically extended its potential reach so that more people, i have no idea how many but a few more will be able to read what any authors publishes. i think the copyright issues today come of between enduring tension on the one hand between the creators and disseminate ears of content and the users of content. i believe there is now more
material for a lower price, more widely available than ever before and that is the great benefit of the digital revolution, digital transformation. on the other hand, that transformation has allowed other industries to rise up and they have different interests. amazon, apple, microsoft, google are important companies, big companies, friends and enemies to publishers because we have business relationships with all of them but on the other hand they extract a toll for getting our content material to the reading public and therefore i think there are differences of the opinion that occasionally arise as you might have heard. one of them, i am going to talk about two areas where we have current issues of great significance.
one is fair use in the academic environment. some of you know three of our member publishers, when georgia state moved from printed course packs as materials for higher education courses to e reserves they made another change, stopped paying a penny for anything put up on the reserves no longer how long it was an it is since 2006 not a penny has been paid and because the georgia state was in the view of publishers and out liar in that, because we have understood and we think many people have understood that copyright is agnostic or the same rules would apply whether we are talking print for digital, that is what led to this particular
litigation. there is all this vagueness and difficulty in deciding what is fair use and you can run through four factors but the bottom line is this is hard to figure out in many cases but in some cases clearer than others. in the cases where large amounts of material are being used semester after semester after semester, not paid in any amount no matter how long the lange, that becomes an issue for copyright boaters and for both the publishers and the authors and that is the gist of why that case was brought and why is still continuing. our view there was one ever fair use means it doesn't mean everything is free. it doesn't mean that there is a fundamental difference between printed material and digital material and it doesn't mean
there's a fundamental difference between a private college and a state run university. the latter we did succeed on at the lower level. the second area i will talk about is the first sale doctrine and i have seen some critics say that this is an area where -- the argument of the supreme court said what if a husband brings back a book that he has bought overseas to give to his wife. is that a violation? that is not the case, don't worry about that. there's a reason there haven't been first sale doctrines brought on a regular basis or brought into certainly the supreme court level and that is because in most respects it doesn't matter. libraries can sell their books. this is not an issue defer --
was an out wire. this is someone who over a period of years botch up for copies, international copies of products designed for international sales and imported and here and in the process pushing close to $1 million. why are there different prices? i will end with this. why are there different prices overseas? when it is recovered. cannot be sold in the overseas market particularly in the developing world for the same price is is sold here and there for just as in the pharmaceutical case there are reduced prices precisely to expand the market and we believe to extend american educational
products, the best in the world to places where they would not otherwise exist. that is where the first sale doctrine touches the public interest. i don't believe americans really want to create disincentives to educate the rest of the world and i don't think that makes good policy for the developing world and i don't think it makes good policy for an industry that is a very important export industry. that is what book publishing is. we are an export industry. american products are among the best in the world. there's a market overseas for this product and we have to find some accommodation. what i would say in conclusion is these issues, there is anxiety, always, as you make this kind of transition from relying entirely on print into a world where we have to produce print and digital products.
there is anxiety in the business models and anxiety about copyright and a worried that there's a culture in which so much that we get online is expected to be free. all of those are worries. we don't have to dot every i and solve every case with a specific rule. we can live together as long as there's respect both for the needs of the public, the needs of readers and the needs of the authors and publishers who bring these important products to the market. thank you. >> thank you. [applause] >> you are here as a scholar and representative of the author's guild and the author's guild is the oldest and primary organization that represents published book authors in the united states about to celebrate the 100th birth day starting on
tuesday here. and what i would say is the author is the center of the copyright system, mentioned in the constitution, primary benefits of exclusive rights. and yet sometimes really invisible to the public in conversations about copyright. last year in an op-ed piece for the new york times you wrote the following. a rich culture is a man's contribution from authors and artists who devotes thousands of hours to work and a lifetime to aircraft. what would you say is at stake with a professional offer in copyright? >> i should say at the outset i am not speaking for the author's and killed. they will probably be miffed if i get too excited speaking on behalf of and as an author today. these are my remarks and i should say before i turn to what it is to be an author i should
speak about what it means to be someone who uses library as we are here at this great national and copyright library. when i was 14 years old my dad sat me down as an educator and he said you will likely spend your life either in a library or laboratory. decide. i was a very confused student at that time and four years later as a work study student, i found myself getting a bit 8:00 in the morning and showing law school library books at columbia law school with a lot of sleepyhead hung over -- i was thinking this is what my dad had in mind. i did choose libraries and spent pretty much my entire adult life
at the british library, and right next door here at the boulder library where the board of governors -- i love libraries. it is a real honor to be at the library of congress. everybody on this panel is an author and everybody else is a lawyer. i am not a lawyer so i am a little out of my depth speaking about copyright. and the nuts and bolts of that. i should say i have been witness to that recently party to the various court cases that have come up about copyright and the protections that our founding fathers as you noted tried to secure for authors. i am increasingly feeling that these legal cases and the way they have been covered in the press have obscured some of the
fundamental issues facing authors. i have also felt some of these concerns are either willfully ignored by judges and culture that is intoxicated, almost orwellian to me, the culture of free and what the culture of free means to authors making a living writing books. the situation facing riders, i am not speaking of best sellers here, is grim and getting grammar for reasons familiar to all of you but worth repeating today. foremost riders i know the mac is pretty simple. earn enough of an advance from publisher to cubs cover expenses and a little aside before you draft your next book proposal. for the last century this has worked for most riders because there has been a collaborative
process involved, courts and congress protecting doctors rights, bookstores, brick and mortar book stores selling books, purchasing them, publishers paying for them, profiting from their investment, all working well enough. this system has assured there was an incentive for novelist and nonfiction writers, books that are fundamental to developing culture but with scarcity and increasingly threatened monopoly these inter depending relationships are strained if not already broken and those who are suffering the most are writers. this has loaded the security of
riders awriters and one part of system that ignores -- you pick low hanging fruit has been from my perspective destabilizing and potentially devastating and without question wrong headed. anxious about tight budgets and storage issues and responding to accessing material electronically as you all know, responding by schering books between branches like university library systems between campuses, that is all well and good. when i wear my professorial hat but as an author and friend with many authors who a decade ago content on a thousand sales now can count on 250 of those sales are now going to publishers, university press publishers and
being told we can no longer publish your book even though we are committed to publishing monographs because the numbers are no longer there. university press themselves are shrinking in number. commercial presses are combining and we may be facing two or three commercial presses in the next few years but that means for authors that the days of auctioning books is over. the day of take a controversial book turned down by two or three major presses and might not find another press to publish them are increasingly near. my sharpest christian criticism as an academic is closer to home. universities in bed with google who have without permission copied, digitized and stored my books along with millions of others which they have no legal right to do under the banner of fair use and they even started a
program to distribute and to liz pointed out is that these books are not only copyrighted but in some cases there authors are still alive. speaking specifically hear about the case that has resulted in the trust court case in which i am a plaintiff and which i hope goes to the supreme court. it is to my mind an exemplary case of the erosion of copyright protection on technical grounds that ignores the rights of authors, counting authors sought to protect. i served on prize committees for national book awards, i regularly serve on committees fellowships and progress and i must tell you that the ambition of books is shrinking. the big books that take years to investigate and to write, books that are at the center of our serious cultural conversations are fast disappearing and they are disappearing because riders can no longer afford to take
iman. i had conversations over lunch with prize-winning novelist turning to write for hbo or tv because publishers can no longer take the lawn. i speak as a dinosaur, one whose books have been incredibly well supported by publishers and future books are all sold so i am not a position of facing a situation to research and write a book but younger riders do. i am confident that the summar. i am confident that the summary judgments will be overturned. these books will be had. i really do fear that the resolution of that case will be moved because one risk of having
all the works under copyright with the royalties that the to publishers and authors from them being circulated through piracy or through a disgruntled employee taking advantage of that. let me conclude by saying the small argument about fair use and digital copying and battles between publishers and behemoths like amazon and google is the wisdom and the intention of our founding fathers many of whom were authors and understood the importance of authors to a democracy and so in trying in article i of the constitutional language that grants congress the power to secure for authors, not amazon or libraries or publishers the exclusive rights to their respective riding but the language and suggests the founding fathers recognized the need for authors to be free from being subsidized financially by
states, patrons, universities, corporations, that might compromise the independence of their work. their language suggests the copyright would in short a diverse range of independent publishers and booksellers that would guarantee a full range of perspectives in the marketplace of ideas. these two are under threat. i will finish by saying i support -- i read a story that has stuck with me and comes back every time i sit down and talk with a rider abowriter about a d his horse for. the farmer, the horse's rations. he still made it to market. the farmer thought so far so good. i will keep cutting those rationed and he kept cutting them and cutting them and the
horse gradually went to market and just when the farmer got way price point which was ideal for him the horse went and died. that i am afraid is the end of the day for writers. thank you. >> we have ten minutes. we have nothing to talk about. i would like to have you speak among yourselves and one question is certainly a full and in the broader copyright community that has come already, fair use is obviously a cherished principle of not just copyright law in the united states but american democracy. we can agree on that. in recent times, is it the case
that their ufair use as a mechar access -- are we adopting it as a fair doctor nor budgetary issuance of institutions? is it a feeling of entitlement? why are we having such tension between the various licensing and access? if you can speak to that. >> i am not convinced that the tension you describe is present. let's take the example of the case james was talking about. i have to speak cautiously because i am a lawyer in that case. i need to be guarded in what i say but i think i can say this.
one of the proposition that underscore summary judgment decision that i feel obviously different about, the likely disposition on appeal from james is that in fact there was no licensing alternative available to create digitized materials which would then be available for a range of entirely legitimate and positive purposes including the one with which my clients were concerned. that is a solution to the really terrible book fan and that affects blind scholars, students and academics. and so i think that the fair use
issues that we hear about are not so much rejections of proper licensing solutions as they are assertions of what has been from really almost the beginning of our copyright system a strong countertrend to the trends that tom and james discussed so eloquently, protection of publishers, protection of the community of authors, that is the paramount interest of end users and the institutions that serve them. i don't think fair use as it is being articulated in cases like georgia state case, the
equivalent of the culture of free. i think that is an overstatement of not a misstatement of the positions that the defenders of fair use in those cases have taken. i don't believe that the position of georgia state or any other responsible library institution, i am not in that case so i can't speak directly, is that every online use of content for support purposes should be free. is not the position of any responsible academic promoter of fair use of whom i am aware but the position is that some uses, those uses that qualify as transformative uses should be available without fee which is the same proposition that about the operation. >> we can agree some uses are
fair use. >> i will -- my -- never argue points of law with a lawyer especially on copyright on the other side of the case. let me say this in layman's terms and speaking as a layman and as a professor and a scholar or a writer who relies on fair use. i believe in fair use. i could not do what i'd do without fair use but within fair use there is a doctrine called france formative use which you just mentioned and that is a camel that opens into the tent, destroys my mind what fair use is intended to mean and that is what i would call a radical notion of transformative use that you can copy and entire book, not little bits and
pieces, you are talking about the whole thing. i think higher courts will resolve that the supreme court has a much more conservative and fair view of fair use that doesn't allow people guiding of fair use. >> i have a fair bit to say here. i would say first of all, when you look at west went on with google and university libraries they simply took it upon themselves. this wasn't a congressional decision. this wasn't a public decision. they simply took it upon themselves to scan millions of books and keep the digital copies with the risk that entailed. one of your comments was when you said paramount interest of end users, that phrase revealed a view of this area that is not right. i think this is a creative
ecosystem where the interests of the creators and disseminated of knowledge is in balance with the end users. i will tell you in the three years i have been at this job i talked to a lot of librarians and university librarians and they are under enormous pressure because of their budgets, their costs have been going up, their resources have been going down, this has been going on for a couple decades and is probably going to get worse with the decline of state contributions to public universities. part of this is really about th.
you can half ending marginally different from the original but in the code of best practices, transforming of use of applied to anything that they would determine was not intended for academic use but is in fact used in a college or university court. that is a complete transformation of the idea of transformative uses. it requires an estimate of what the actual intention was but secondly and more important, it is just using the same material for the purpose of being scored
by the readers. it is not transformed of. we thank what is going on here, and this -- we are all part of the same ecosystem here. libraries are our friends, friends of publishers and authors but when these particular copyright doctrines get moved in ways that carry i would say a significant threat to the productivity of the ecosystem that creators have issues. >> we are almost out of time, in our office, we use the number of provisions relating to updating the copyright act so we will work with congress to find solutions and updating the library selections and the kc amendment which is the exception for print disabilities and require updating. and what i would ask you is we
had a conversation largely about professional authorship and copyright, should we be thinking about the legal treatment of authorship differently than we have for the past 200 years? should we be thinking about different kinds of authors in culture and possibly different legal treatments? is that's a conversation worth having? >> it is an essential conversation because professional author should remains tremendously important. i sincerely hope the horse survives. end there is now also a new phenomenon of what might be termed voluntary authors should that has been enabled by new technology, in the academic realm, the rise of open access
models which need to be embraced rather than in impeded especially since they offer a potential solution to the cost problems in the library sector that tom describes which would not necessarily in this on the economic interests of anyone so we need to think very seriously about how we treat voluntary authorship. by the same token the question remains as to whether or not the account of the ecosystem. i love that terminology, that we have heard today, is in fact the constitutionally correct account. i think i must differ slightly from the account that says the
original intent of the framers of the constitution who then turned around the year after and enacted the first copyright act was to give something in balance to all of the participants in the system. as far as i can tell, rightly or wrongly those framers had an instrumental vision of copyright which in fact the end user, the consumer, i am happy to say it again, the reader was the ultimate beneficiary of the system and we may dislike that original framing, we may prefer european-style visions of copyright law. in my view we are stuck with it and more for good and for ill. >> i would add a qualified by saying that the framers of the constitution didn't speak of
consumers. they spoke of authors. intent is difficult to fathom. their language is about the exclusive rights of authors with respect to writing and within the system because authors, individual authors are the least powerful members of this ecosystem, they are the most endangered. >> one final thing i would say is for book publishers, open education resources which is where the movement is going, it is a free country. people want to get develop -- get together and give the book away for free, that is the right of the author. that is the right of a copyright holder and that is fine. our objection has come only when the government here or abroad decides they are going to fund
those free materials and compete with a robust private sector industry. then we get a backup a little bit. the final thing i would say is this. if you think about the educational market, the k-12 or higher education market, one of the hardest things for anyone to do is to evaluate the quality of the materials. and yet throughout this country in different ways, perhaps with the texas state board of education you have people without experience in evaluating the quality of materials trying to do it. and the open movement has a burden to carry which is can establish high-quality materials over long enough period of time to compete with the